Targeted Sanctions and Due Process - United Nations Treaty ...

B. Fassbender, Targeted Sanctions and Due Process
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ICCPR, Article 14, para. 1; American Convention, Article 8, para. 1; African Charter, Article
7, para. 1);
– the presumption of innocence in criminal proceedings (ECHR, Article 6, para. 2; see
ICCPR, Article 14, para. 2; American Convention, Article 8, para. 2; African Charter, Article
7, para. 1(b));
– specific rights for persons accused of criminal offences, including rights to be informed
of the charge, to trial within a reasonable time, to legal assistance and to cross-examine
witnesses (ECHR, Article 6, para. 3; see ICCPR, Article 14, para. 3; American Convention,
Article 8, para. 2; African Charter, Article 7, para. 1), and the right to be free from
retrospective criminal laws (ECHR, Article 7; see ICCPR, Article 15; American Convention,
Article 9; African Charter, Article 7, para. 2).
In Article 5, paragraph 1, of the European Convention (right to liberty and security) it is
guaranteed that “no one shall be deprived of his liberty … in accordance with a procedure
prescribed by law” (see ICCPR, Article 9; American Convention, Article 7; African Charter,
Article 6). According to Article 2, paragraph 3(a), of the ICCPR, each State Party to
the Covenant undertakes “to ensure that any person whose rights or freedoms as herein [in
the Covenant] recognized are violated shall have an effective remedy”.
1.5 Additional legal process rights in criminal proceedings were agreed upon by the
Member States of the Council of Europe in the Seventh Protocol to the European Convention,
and have also been recognized by other instruments:
– the right of appeal in criminal matters (Seventh Protocol, Article 2; see ICCPR, Article
14, para. 5; American Convention, Article 8, para. 2(h));
– the right to compensation for wrongful conviction (Seventh Protocol, Article 3; see
ICCPR, Article 14, para. 6; American Convention, Article 10);
– the right not to be tried or punished twice for the same offence (Seventh Protocol, Article
4; see ICCPR, Article 14, para. 7; American Convention, Article 8, para. 4). 18
1.6 The right of access to the court in order to have disputes determined in accordance
with the law is deeply rooted in the common law. In his famous “Commentaries on the
Laws of England”, Blackstone described the right in the following terms: “A third subordinate
right of every Englishman is that of applying to the courts of justice for redress of
injuries. Since the law is in England the supreme arbiter of every man’s life, liberty and
property, courts of justice must at all times be open to the subject and the law be duly administered
therein.” 19
1.7 Further, the following general fair trial rights have been recognized in common law:
the right to an independent and impartial tribunal; the right to a fair hearing; the right to a
public hearing; the right to hearing within a reasonable time; the right to a reasoned
judgment. 20 The principle audi alteram partem (hear the other side) is generally accepted
18 For an in-depth analysis, see Stefan Trechsel, Human Rights in Criminal Proceedings, Oxford:
Oxford University Press, 2005.
19 Quoted in: Clayton & Tomlinson, supra note 9, at p. 553.
20 For details, see Clayton & Tomlinson, supra note 9, at p. 574 et seq.